U.S. EPA's criminal investigators spend their days targeting myriad domestic and international crimes ranging from illegal dumping to the selling of bogus asbestos-removal training certificates -- along with the occasional armed standoff and sting operation.
The agency's criminal division, in conjunction with the Department of Justice's Environmental Crimes Section, has seen an ebb and flow in crime enforcement during the past few administrations, alternately earning praise and condemnation any time it wades into new areas of enforcement.
Now, environmentalists, industry leaders and individual liberty advocates are anxiously watching to see how the Obama administration will enforce environmental laws -- a key question made even more pressing after a high-profile investigation went awry and as a group seeking to rein in the federal enforcement policy threatens to bring the matter to the Supreme Court.
"You have to look at the issue of the change in an administration, regardless of whether or not there has been a numerical uptick in the number of criminal investigations and prosecutions," said David Lashway, an environmental attorney in the Washington, D.C., office if Hunton & Williams.
This spring, Obama nominated Ignacia Moreno to helm DOJ's Environment and Natural Resources Division, which is tasked with enforcing environmental laws and defending federal regulations in lawsuits. If confirmed, Moreno -- a former DOJ official who now represents General Electric Co. -- would replace Ronald Tenpas.
Tenpas, along with David Uhlmann, then-chief of DOJ's Environmental Crimes Section, significantly expanded criminal prosecutions into new areas, including worker endangerment.
The effort to bring environmental criminal enforcement to bear in connection with worker safety issues led to what some have called the biggest environmental-crime prosecution in U.S. history -- and a major embarrassment for the government.
W.R. Grace & Co., which supplied specialty chemical, construction and container products, was found not guilty in May in connection with the asbestos contamination of Libby, Mont.
Prosecutors alleged that the company and seven former executives conspired for decades to expose Libby residents to asbestos-contaminated vermiculite. Nearly 200 Libby residents have died of asbestos-related disease.
Along with a difficulty marshaling uncontested evidence, the trial judge in the case openly denounced the government's key witness, Robert Locke, and questioned the actions of the prosecutors.
Following the verdict, EPA declared a public health emergency in the town, the first such use of the Superfund law (E&ENews PM, June 17).
Criminal investigations going forward probably won't be significantly affected if the agency continues to expand its purview -- and budget, according to Texas-based environmental attorney Walter James.
"I expect we'll see a significant upturn in enforcement after the start of the October fiscal year," said James, who maintains an environmental crimes blog in addition to his legal practice. "My clients could be caught up in the web, which is good news for my business but bad news for my clients."
The agency's proposed fiscal 2010 budget includes a $32 million increase for EPA's overall Enforcement and Compliance Assurance program, the highest enforcement budget ever. But the Criminal Investigation Division is slated for a $3 million increase from fiscal 2009 -- $45.4 million, up from $42.6 million last year.
"You can tell the commitment of an administration by the funding for enforcement and there's never been, at least in my view, the funding that would allow federal investigators and prosecutors to develop the sort of deterrent effect of criminal law that I think Congress intended," said Patrick McGinley, an environmental law professor at West Virginia University's College of Law.
The most effective way to improve enforcement would be to "beef up the number of agents, which is something only Congress can do," said Bruce Pasfield, a former environmental prosecutor at DOJ from 1990 until 2005.
"Are they going to go after quality cases or just run-of-the-mill asbestos rip-and-runs ... to beef up their numbers? This all depends on the people you hire," added Pasfield, now a partner in the D.C. office of Alston & Bird.
The agency is in the process of implementing a three-year hiring strategy "with the goal of increasing the number of agents to 200 by the end of fiscal year 2010," said EPA spokeswoman Deb Berlin.
'Typical' special agents
Established nearly 30 years ago, EPA's criminal enforcement program investigates allegations of the most serious violations of federal environmental law while assisting DOJ in the prosecution of individuals and corporations charged with criminal offenses.
The division is made up of 190 criminal investigators with full law enforcement authority, according to Fred Burnside, director of the Office of Criminal Enforcement, Forensics and Training.
An area office under the supervision of a special agent in charge is located in each of EPA's 10 regional offices. Smaller resident offices are located in several dozen other locations across the country, he said.
These investigators, authorized to carry weapons and execute search warrants, "are typical agents who have the full law enforcement powers that you'd expect from someone with the Secret Service or NCIS," said Burnside.
"It's not unusual for environmental criminals to commit other crimes such as fraud or conspiracy and we have even run into some violent criminals," he said. "Generally, a crime is a crime. If they're doing bad things against the environment, they probably won't hesitate to do bad things to other people."
"At the same time, we do get just environmental crime violators who have chosen to break the rules. It's a mix."
As of June, the agency has opened 285 new environmental crime cases for fiscal 2009, according to Berlin, who said there were 319 new cases in fiscal 2008 and 340 in fiscal 2007.
"We typically have about 750 open cases at any one time," Burnside said.
In December 2008, EPA created a most-wanted list of environmental fugitives, which includes photos of the accused, summaries of their alleged environmental violations and information on their last known whereabouts.
"Even though this is simply an online tool, we've received a fair number of calls that have led to a capture," Burnside said.
The tips and complaints line, started in January 2006, also has been helpful, Burnside said. "We've received more than 1,700 tips from the public and 19 criminal cases have been opened as a result."
It was this kind of tip that led to the capture earlier this month of Larkin Baggett, a Utah man who pleaded guilty to seven environmental and assault charges after he pointed a loaded rifle at Florida authorities in March.
Baggett, former owner of a company called Chemical Consultants Inc., pleaded guilty in Key West federal court to violating federal hazardous waste and clean water laws, threatening federal agents and illegally possessing weapons.
The initial charges netted him a spot on the agency's Web-based list of fugitives. EPA officials said they received a tip about Baggett's whereabouts after he was posted on the list, and authorities tracked him to a marina in Marathon, Fla., where he emerged from a trailer and pointed a rifle at officials. After being shot in the buttocks and the face, Baggett was air-lifted to the hospital.
Authorities discovered eight weapons and 3,000 rounds of ammunition in Baggett's trailer home and truck.
As a result, in addition to a potential three- to five-year prison sentence for violating the Clean Water Act and Resource Conservation and Recovery Act in Utah, Baggett could spend up to 90 years behind bars for stockpiling weapons and threatening police officers.
A Supreme Court challenge?
Last week, the Washington Legal Foundation filed a petition asking the Supreme Court to review a federal appeals court decision to uphold the conviction of a small-business owner for alleged violations of the Resource Conservation and Recovery Act, which governs the disposal of hazardous wastes.
"Congress intended that criminal prosecutions for violations of the environmental laws should focus on those who intentionally cut corners and abuse the environment in order to avoid the costs of compliance, not those who in good faith are doing all they can to comply with the law," said WLF chief counsel Richard Samp.
In March, a three-judge panel on the 9th U.S. Circuit Court of Appeals upheld the conviction of Krister Sven Evertson for illegally transporting explosive, hazardous materials across Washington and Idaho and for storing hazardous waste in Salmon, Idaho.
"This is a prime example of an agency abusing its power, and we hope the Supreme Court decides to take the case," Samp said.
The high court will examine all petitions for review when it returns for the fall term that begins Oct. 6.
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